Fort Smith school board opts for trial in FOIA lawsuit

FORT SMITH — The Fort Smith School board will be going to trial over a Freedom of Information Act lawsuit after a 5-2 decision Thursday to reject a settlement offer.

Fort Smith attorney Joey McCutchen filed a lawsuit against the school board and district after obtaining October emails between board members in which they discussed possible slates of officers. Sebastian County Prosecuting Attorney Dan Shue issued a letter to the board members Nov. 8 stating that he found them in violation FOIA. Sebastian County Circuit Judge Stephen Tabor denied the board’s request to dismiss the lawsuit Jan. 23.

The settlement offer the board rejected Thursday was the second offer from McCutchen. Originally, the offer was that the plaintiff, June Bradshaw, would not seek costs or attorney’s fees if the board agreed to have an educational seminar given by a legal professional well-versed in the Arkansas FOIA, agreed that the emails violated FOIA, agreed that future emails would not violate FOIA and agreed that both sides would pay their own costs and fees.

McCutchen later withdrew that offer after the board discussed it at a Dec. 29 committee meeting, tabled a motion to reject it and did not make a decision by the Jan. 18 deadline. The offer rejected Thursday was similar, except that the school board would pay attorney’s fees, which McCutchen would donate toward a scoreboard at Darby Junior High.

“It is my personal feeling that this proposal is not acceptable for several reasons,” President Deanie Mehl said Thursday.

She said that accepting the proposal gives the impression that the board intentionally violated FOIA.

“More importantly, this proposal is for the court to enter an injunction against the Fort Smith School Board to never violate FOIA again, and that’s a problem for several reasons. One, the law doesn’t provide for any type of injunction to be issued in the event there is a violation. Second, the injunction would actually set up the current board as well as future boards for a potential contempt of court charge in the event that we inadvertently violated FOIA again.”

Mehl spoke to the board about other things that could lead to possible FOIA violations, such as if board members were to take part in discussions over social media.

“I know for a fact inquiries have been made to the Arkansas attorney general to try to get two additional FOI violations brought against me personally,” Mehl said. “There’s also been inquiries made to have me charged with falsifying public documents. Now, all three of those alleged charges have been found to be completely unfounded, but I think we need to be very careful to permit an injunction that would set us up for contempt of court violation.”

Vice President Susan McFerran agreed that this could hurt future boards.

“It scares me to agree to something like this because, to me, it’s just opening up a can of worms. He’s got that little carrot dangling in front of us like a rabbit, adding that Darby scoreboard or whatever,” McFerran said.

Mehl, McFerran and board members Talicia Richardson, Yvonne Keaton-Martin and Jeannie Cole voted in favor of rejecting the offer. Secretary Bill Hanesworth and board member Wade Gilkey voted against the motion to reject the offer.

Gilkey said he did not see pursuing the lawsuit and going to trial as being the best use of tax money.

Thursday night’s decision will cost the district a maximum of $5,000, Mehl said. The district has already spent nearly $10,000 on the lawsuit, and if the judge awards the plaintiff attorney’s fees, it would cost another $10,000.

“We need to learn more about FOI. We need to be better trained. We need to work harder in these issues of transparency,” Gilkey said. “My feeling on this is for the money we’re going to spend on a lawsuit would be better spent in the classroom.”

Gilkey had about an hour of FOIA training as a part of new school board member training, he said after the meeting.

“I feel like, from my perspective, we violated the law unintentionally and without malice,” Hanesworth said.

Hanesworth said that since the last time the board had discussed the lawsuit, he had come to the conclusion that the board violated FOIA.

“I understand the concept of standing your ground. I just don’t see a lot of ground to stand on with this lawsuit,” Gilkey said.

The available dates for Tabor to hear the case are March 3, 16, 17, 28, 29, 30 and 31, according to a letter from Trial Court Administrator Debi Peters. Mehl asked the board members to look at their calendars.